Buscador de jurisprudencia

The parents had a child, born in the USA in January 2020. In 2021 the family moved to Colombia and separated in 2022. In 2023 the mother took the child to Florida. The father originally consented to travel until May 2024. The mother did not return to Colombia as planned and moved to New York with the child, without telling the father their new address. 

The District Court found that the father had given only limited consent to the child’s travel and ordered the return of the child to Colombia. 

In April 2025 the child was returned to Colombia. The parents began a conciliation process but were unable to reach an agreement regarding custody and access.

In September 2025 the parents formalized their divorce through mutual agreement including contact and access rights. The mother filed a request to re-establish the child’s residence in the USA but the parents couldn’t not reach an agreement. 

In December 2025 the mother took the child to the USA without the father’s knowledge or consent. 

The father filed an application under the 1980 Hague Abduction Convention for the return of the child. 

The mother argued that the child was habitually resident in the US at the time of the removal and that she had full custody of the child and so could relocate without the father’s consent. 

Return ordered. The child was wrongfully removed to the United States in violation of the father’s rights of custody and must be returned to Colombia, where he was habitually resident.

Habitual Residence - Art. 3

From the time the child was returned to Colombia, in April 2025, to when he was removed to the United States, in December 2025, he lived exclusively in Medellín, Colombia. He was enrolled in a Colombian school for four months, participated in various extracurricular activities, and spent time with family and friends. 

The facts and evidence concerning the child’s settlement into life in the United States following the wrongful retention and before his return to Colombia were afforded no more than marginal weight, as placing undue weight on this evidence would reward the mother for the time during which the child was wrongfully retained.

Accordingly, the Court concludes that the child was habitually resident in Colombia prior to his removal to the United States in December 2025. 

Rights of Custody - Art. 3

The divorce decree unambiguously stated that the child would continue to live in Colombia with the mother and set forth a schedule for access visits with the father. The father had custody rights under Colombian law, including the ability to participate in deciding where the child would live and to make decisions about his upbringing. He was exercising these rights at the time of removal. Therefore, the mother had breached the father’s rights of custody by removing the child from Colombia and attempting to permanently in the United States.